Legal Interpretations of Trauma: The U.S. Circuit Court of Appeals and Gender-Based Asylum Claims

Abstract

This article is based on exploratory research on how the U.S. Circuit Court of Appeals uses the language of trauma in gender-based asylum claims. Gender-based asylum claims include female genital mutilation (FGM), coercive population control (CPC) in the form of forced abortions and forced sterilizations, rape, forced marriage, and domestic violence. The Circuit Courts have reviewed appeals from petitioners with asylum claims since 1946, yet the language of trauma did not appear in the Court’s decisions until 1983. From 1983 to 2023, only 385, 3.85% or less, of the over 10,000 asylum cases before the Circuit Courts used the language of trauma in its legal interpretation of persecution. I have identified 101 gender-based asylum cases that were reviewed by one of the eleven U.S. Circuit Court of Appeals that apply the language of trauma in its legal interpretation of persecution for this analysis. The research question guiding this study is: how does the U.S. Circuit Court of Appeals use the language of trauma when reviewing gender-based asylum cases? This study found that U.S. Circuit Courts use the language of trauma in four ways: precedent cases, policies and reports, physical trauma, and psychological trauma when reviewing gender-based asylum claims. This study provides the first data set of gender-based asylum claims under review at the U.S. Circuit Court of Appeals that use the language of trauma.